L'administration de mission en droit burundais: cas de la Commission Nationale des Terres et autres Biens (C. N. T. B. )

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TABLE DES MATIERES
DEDICACE··············································································································· i
REMERCIEMENTS······························································································ i i
PRINCIPAUX SIGLES ET ABREVIATIONS ················································· i i i
INTRODUCTION GENERALE ············································································1

CHAPITRE I : LA NOTION ET LE FONDEMENT DE
L'ADMINISTRATION DE MISSION ··································································4

Section 1. La notion d'Administration de mission ·················································· 4

§1. Les contours de la notion ············································································ 4

A. L'Administration de mission: une variante de l'Administration Publique ···· 4

B. Les critères fondamentaux des administrations de mission ························· 6

1. La spécificité ···························································································· 6

2. La mobilité ······························································································· 6

3. La double appartenance ············································································ 6

4. L'autonomie des pouvoirs juridiques ························································ 7

5. La légèreté et la maniabilité ····································································· 7

§2. Typologie d'administrations de mission et leurs rapports avec les autres institutions administratives proches ···································································· 7

A. Typologie d'administrations de mission ······················································ 7

1. Classification selon la durée de l'administration de mission ····················· 8

a. Une entité temporaire ············································································ 8

b. Une entité transitoire ············································································· 8

c. Une entité permanente··········································································· 9

2. Classification selon le secteur dont relève la mission ······························· 9

a. Le secteur politique ··············································································· 9

b. Le secteur économique ········································································· 9

c. Le secteur administratif ······································································· 10

d. Le secteur social ·················································································· 10

3. Classification selon la technique d'organisation administrative utilisée ·· 11

a. Les administrations de mission centrales ············································· 11

b. Les administrations de mission décentralisées ···································· 12

c. Les administrations de mission totalement indépendantes ··················· 12

B. Les rapports entre l'Administration de mission et les
institutions administratives connexes ····························································· 13
1. Les rapports avec l'Administration de gestion ········································ 13

2. Les rapports avec l'établissement public················································· 13

3. Les rapports avec l'Autorité Administrative Indépendante (A.A.I.) ········ 14

a. La crise d'identité des institutions administratives nouvelles ··············· 15

b. Essai de distinction ············································································· 16

Section 2. Le fondement de l'Administration de mission ···································· 17

§1. La valeur de l'Administration de mission ·················································· 17

A. La modernisation de l'Administration publique ········································ 17

1. Les lacunes de l'Administration traditionnelle ········································ 17

a. Les causes ··························································································· 17

b. Les effets ···························································································· 18

2. Le rôle de l'Administration de mission dans la modernisation de
l'Administration publique ··········································································· 19

B. L'adaptation des structures institutionnelles aux missions nouvelles et
contingentes de l'Etat ····················································································· 20

1. L'Administration de mission et le contexte post-conflit ·························· 21

2. L'Administration de mission et le contexte de pénurie de ressources budgétaires································································································· 22

a. La reconstruction socioéconomique et la lutte contre la pauvreté ········ 22

b. La bonne gouvernance ········································································ 23

C. L'application des principes démocratiques dans l'Administration

publique········································································································· 24

§2. Les risques d'échecs de l'Administration de mission ································ 25

A. La gestion aristocratique ········································································· 25

B. Le dépassement du cadre initial ································································ 26

C. La fuite des responsabilités ······································································· 26

D. Le parlementarisme ·················································································· 27

CHAPITRE II: LE CADRE D'ECLOSION DES ADMINISTRATIONS DE
MISSION IMPLIQUEES DANS LA REHABILITATION DES SINISTRES
BURUNDAIS········································································································ 28

Section 1. Le cadre sociologique: le problème foncier et des autres biens des
sinistrés················································································································ 28

§1. La raréfaction de la propriété foncière ······················································ 28

§2. L'aggravation de la question foncière par le phénomène des sinistrés············································································································· 29

Section 2: Le cadre juridique: la multiplicité des instruments juridiques relatives à
la mission de réhabilitation des sinistrés ······························································ 30
§1. Les instruments juridiques internationaux ·················································· 30
A. L'échelle internationale ············································································· 30

1. Principes directeurs relatifs au déplacement de personnes à l'intérieur de leurpropre pays ·························································································· 30

a. Contexte et justification ······································································· 30

b. Contenu······························································································· 31

2. Les principes concernant la restitution des logements et des biens dans le
cas des réfugiés et des personnes déplacées ··············································· 32

a. Contexte et justification ······································································· 32

b. Contenu······························································································· 33

B. L'échelle régionale ··················································································· 33

C. L'échelle sous-régionale ··········································································· 34 §2. Les instruments juridiques du droit interne ················································ 35

A. Les textes généraux ················································································ 35

1. L'Accord d'Arusha pour la paix et la réconciliation au Burundi ············· 36

2. La Constitution ······················································································· 36

3. Le Code foncier ······················································································ 37

B. Les textes spéciaux ··················································································· 37

Section 3. Le cadre organique : la discontinuité des structures ····························· 38
§1. La Commission Nationale des Rapatriés (C.N.R.) dite aussi « Commission MANDI » du 30 juin 1977 ················································································ 38

A. Historique ································································································· 38

B. Bilan des réalisations de la Commission ··················································· 39

1. L'apurement du contentieux relatif aux immeubles ································ 40

2. La régularisation des titres d'occupation et l'attribution des concessions de terres vacantes ··························································································· 42

§2. La Commission Nationale chargée du Retour, de l'Accueil et de l'Insertion des Déplacés et des Rapatriés burundais (C.N.R.A.R.) du 22 janvier 1991 ······· 43

A. Historique ································································································· 43

B. Bilan des travaux de la Commission ························································· 44

C. La question de l'inconstitutionnalité des décisions de la C.N.R.A.R. et ses conséquences································································································· 45

1. Le point de départ ················································································· 45

2. Conséquences de l'arrêt de la Cour Constitutionnelle ····························· 46

3. Esquisse de solution ··············································································· 47

§3. La Commission Nationale du Rapatriement de 1996 ································· 49

A. Historique ································································································· 49

B. Les activités réalisées ··············································································· 49

§4. La Commission Nationale de Réhabilitation des Sinistrés (C.N.R.S.)

de2002 ············································································································· 50

A. Historique ································································································· 50

B. Les réalisations ························································································· 51

1. Le rapatriement et la réinsertion des sinistrés ········································· 51

2. La résolution des litiges fonciers ···························································· 52

CHAPITRE III. LA C.N.T.B. EN TANT QU'ADMINISTRATION DE
MISSION········································································································ 53

Section 1 : Le cadre juridique et institutionnel de l'activité de la C.N.T.B. ··········· 53

§1. Le cadre juridique ······················································································ 53

A. Le paysage normatif·················································································· 53

1. La loi n^°1/18 du 04 mai 2006 et ses textes d'application ······················ 53

2. La loi n^°1/17 du 04 septembre 2009 et les textes de son application ···· 54

B. Les pouvoirs juridiques de la C.N.T.B. ····················································· 54 1. Les compétences de la C.N.T.B. ···························································· 54

a. La compétence matérielle ··································································· 54

b. La compétence personnelle ································································· 55

c. Les autres types de compétences ························································· 55

d. Les questions préjudicielles ································································ 55

C. Le pouvoir de poser des actes juridiques ··················································· 56

1. Les actes administratifs de la C.N.T.B. ··················································· 56

a. Les actes administratifs créateurs des effets de droit ··························· 57

b. Les actes administratifs déclaratifs ······················································ 57

2. Les actes « administratifs-juridictionnels » ou quasi-juridictionnels ······· 58

§2. Le cadre institutionnel de la C.N.T.B. ······················································· 59

A. Les structures, les missions et le fonctionnement de la C.N.T.B. ············· 59

1. Les structures ························································································· 59

a. L'organe central chapeautant ······························································· 59

b. Les délégations provinciales ······························································· 60

c. Les collaborateurs à la base ································································· 60

d. Le personnel d'appui ··········································································· 61

2. Les missions de la C.N.T.B. ··································································· 62

3. Le fonctionnement de la C.N.T.B. ·························································· 63

a. Le travail des Sous-commissions ························································· 63

b. Le travail des délégations provinciales ·············································· 63

c. Le travail de la plénière ······································································· 64

B. Le contrôle exercé sur la C.N.T.B. ···························································· 64 1. Le contrôle administratif : la tutelle de la 1^ère Vice-Président ················· 65

a. Le siège de la matière ········································································· 65

b. Les modalités et les moyens de la tutelle exercée sur la C.N.T.B. ······ 65 1^° Le contrôle sur les personnes ························································ 65
2^°. Le contrôle sur les actes ······························································· 66 3^°. La tutelle financière ····································································· 67

2. Le contrôle juridictionnel ······································································· 67

Section 2. La nature d'administration de mission de la C.N.T.B. au regard des
critèresretenus ····································································································· 69

§1. La spécificité du mandat ··········································································· 69

A. La spécificité temporelle ·········································································· 69

B. La spécificité spatiale ··············································································· 69

§2. La mobilité des membres ·········································································· 69

§3. La double appartenance de ses fonctionnaires ··········································· 70

§4. La légèreté et la maniabilité de la structure ··············································· 71

§5. L'autonomie des moyens juridiques et matériels ······································· 72

A. Les moyens juridiques ·············································································· 72

B. Les moyens logistiques et financiers ························································· 73

Section 3: Le bilan de la C.N.T.B. ······································································· 74

§1. Le bilan ······································································································ 74

A. Le bilan des activités de la C.N.T.B. selon ses missions ··························· 74

1. La résolution des litiges fonciers ···························································· 74

2. Le règlement des litiges liés aux « autres biens » ··································· 75

3. L'assistance technique et matérielle aux sinistrés ··································· 76

4. L'inventaire et la récupération des terres domaniales irrégulièrement attribuées···································································································· 77

B. Le bilan de la C.N.T.B. selon les particularités régionales de sa tâche ······ 80

1. Le Sud et l'Ouest du pays ······································································ 80

2. Le Centre et l'Est du Pays ······································································ 81

3. Au Nord du Pays ···················································································· 81

§2. L'appréciation du bilan de la C.N.T.B. ····················································· 82

A. Atouts ······································································································· 82

1. Le soutien de la communauté nationale internationale ··························· 82

2. La forte volonté politique ······································································ 83

B. Contraintes ································································································ 84

1. Les limites d'ordre général ····································································· 84

2. Les limites des nouveaux textes régissant la C.N.T.B. ··························· 85

C.Les effets des décisions de la C.N.T.B. a l'égard des parties ······················ 87

D. Perspectives d'avenir ················································································ 88 CONCLUSION GENERALE ·············································································· 89 LISTE DES TABLEAUX ····················································································· 92 BIBLIOGRAPHIE································································································ 93 TABLE DES MATIERES ·················································································· 100